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Old March 24, 2013, 01:34 AM   #1
dakota.potts
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Does Heller provide protection from another AWB?

Just a question I had. As the Heller decision protects weapons that are considered commonly used, would that prohibit the broad banning of assault weapons and standard capacity magazines? Semi automatic weapons are undeniably in common use and those that aren't (like, say, a Tavor or AUG) aren't the scary weapons that are currently being scrutinized. Certainly standard capacity magazines are commonly used as they're sold with almost every new handgun and semi automatic rifle. It seems to me that this would mean that even if an AWB happened we would have precedent to prove it unconstitutional. I could see them having moderate success with "exotic ammo" like maybe .303 British or something if the goal is really just to chip away rights but it seems to me most of them don't even know these rounds exist.

Furthermore, I wonder how this could change the legality of the NFA restrictions. I certainly believe that automatic weapons would be in common use if they were legal and therefore should have the same protection. Proving it would be something different entirely
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Old March 24, 2013, 07:29 AM   #2
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That, my friend, is the $64K question.

Of course, those who stand on our side of the fence think that Heller does protect us from an AWB. Dianne Feinstein clearly does not. She stated in a recent exchange with Senator Cruz that "Heller clearly carves out three exemptions" (or something very similar) into which she thinks her AWB fits.

Whether or not Heller actually provides the protection we want it to will be a decision for the courts.
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Old March 24, 2013, 07:35 AM   #3
mayosligo
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Does Heller provide protection from another AWB?

Also, who knows what happens if a conservative justice passes in the next4 years.
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Old March 24, 2013, 08:59 AM   #4
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There are two (three) opposing points of view.

I. Heller protects all firearms in common use for lawful purposes (generally speaking, most of the guns - minus NFA weapons - for sale throughout the US at the time the decision was published). In this interpretation, if a firearm is in common circulation, then it is protected in its current form.

II. Heller extends protection to "firearms" and not "accessories". In this interpretation, AWBs do not violate Heller because they restrict ownership of "accessories" (features) of guns and not the guns themselves. (This is entirely refutable based upon the reversibility clause in most modern AWB proposals.)

(III. Heller is an illegitimate reading of the second amendment and should be overruled accordingly. I write this in parenthesis because it is a general opinion most gun control advocates hold about Heller and not an actual interpretation of the Court's opinion.)
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Old March 24, 2013, 09:17 AM   #5
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Also, who knows what happens if a conservative justice passes in the next4 years.
It's possible that they could hear a case in which "common use" gets a narrower definition, and that "assault rifles" are somehow found to be "dangerous." However, that's a real stretch, and given that the Chief Justice was on our side in Heller and McDonald, that seems highly unlikely.

In a way, Scalia and Alito did a good job of boxing them in for the foreseeable future. The court can't go reversing its own decisions within a short time-frame without damaging their credibility.
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Old March 24, 2013, 09:34 AM   #6
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It will be interesting to see how the law suits against New York, and Colorado's new gun laws shake out. I, of course, believe that AR style semi-auto rifles, and similar, including their 20 and 30 round magazines are certainly "common use". Whether or not the courts will decide they are common use within the legal definition of the Heller and Miller cases is yet to be seen.
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Old March 24, 2013, 10:04 AM   #7
wayneinFL
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The "common use" definition is a little messy.

My first problem with it is that automatics are not in common use only because they have been heavily restricted or banned since 1935.

But they are in common use for the same uses that would be protected under the second amendment. Every military and police organization in the world keeps automatic rifles and submachine guns, so the general militia should have access to them.

As far as semiautomatics are concerned, I don't see how you could argue that they are not in common use.
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Old March 24, 2013, 10:32 AM   #8
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Please correct me if I am wrong but as a result of Heller and McDonald the 2nd Amendment has now been incorporated into the states which prior to that it was not. NY I believe is one of the few if not the only state that does not have a RKBA statement in the state’s constitution. My impression is that the Constitution places limits on what the federal government can do and incorporation passes those restrictions down to the states. Given that there should be no reason why the NY SAFE Act shouldn’t be overturned.
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Old March 24, 2013, 01:10 PM   #9
natman
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Quote:
The "common use" definition is a little messy.

My first problem with it is that automatics are not in common use only because they have been heavily restricted or banned since 1935.

But they are in common use for the same uses that would be protected under the second amendment. Every military and police organization in the world keeps automatic rifles and submachine guns, so the general militia should have access to them.

As far as semiautomatics are concerned, I don't see how you could argue that they are not in common use.
You're right, there is a bit of circular logic in defining fully automatic firearms as bannable because they are not in common use when the reason they are not in common use is because they are banned.

However, it is quite clear that if a firearm IS in common use, and ARs and the like certainly are, then it is protected by the Second Amendment.

I don't see NY, CO or CA's AWB standing up in SCOTUS.
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Old March 24, 2013, 01:33 PM   #10
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If it wasn't a 5 to 4 court, Heller would be cursed by us now and the bans would be seen as quite constitutional. McDonald would have not occurred.

From what I've read SCOTUS justices are best predicted by their politics and they use precedent to justify it. Yes, sometimes there are suprises but I don't think a couple more of Sotomayor's would have given us three cheers for the RKBA.
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Old March 24, 2013, 02:06 PM   #11
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Like Feinstein said they don't care about the constitutionality of the laws they try to inflict upon us citizens. They let the courts figure that out while our constitutional rights are being violated until that time.

Had a scary thought. Are they trying to make these laws in preparation for a supreme court where Obama has been able to install more justices that are politically aligned with his beliefs? It might well be enough time for those cases to hit the Supreme court.

If that happened could Heller etc. be overturned or can it stand as precedent?
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Old March 24, 2013, 02:38 PM   #12
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The Supreme Court can, and has overturned it's own precedents.
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Old March 24, 2013, 03:10 PM   #13
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That's what I'm afraid of........
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Old March 24, 2013, 05:53 PM   #14
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Quote:
Originally Posted by Tom Servo
In a way, Scalia and Alito did a good job of boxing them in for the foreseeable future. The court can't go reversing its own decisions within a short time-frame without damaging their credibility.
I think Alito did a much better job in McDonald than Scalia did in Heller, and I continue to [want to] believe that Scalia wrote the Heller decision as he did in order to keep the fifth vote on the side of the good guys (s). But Scalia did NOT make it clear that the 2nd Amendment protects one, single, unified, two-pronged right to both keep AND bear arms, thus leaving the antis to continue the ridiculous charade that the 2nd Amendment protects ONLY a right to keep a firearm in the home, and that the 2A has nothing to do with self-defense out on the street. (Or even in your own front yard.)

The other place where Scalia screwed the pooch was with the fuzzy language abut "presumptively" lawful restrictions [which is to say, "infringements"] on the RKBA. What this really meant was "There are a lot of gun regulations around the country that are not part of this case, so we're not going to address them today. Until challenged in court, we'll presume that they're okay."

But the grabbers, like Ms. Feinstein, take that as carte blanche to write any sort of nonsense they want, preface with "reasonable" (even though it isn't reasonable), and run with it. And what Scalia wrote ignores the plain language of the 2nd Amendment itself, which does NOT admit any sort of regulations, reasonable or unreasonable.

This is exactly what the Congress has done with the commerce clause. The Constitution reserves to the Feds the authority to regulate interstate commerce. So every stupid new law they pass in Washington now begins by declaring that ___ affects interstate commerce, therefore ___.

I was disappointed in Scalia's decision. I think he could -- and should -- have done better, but it is what it is. And it did settle (at least for the immediate future) the issue of whether the RKBA is an individual right or a collective right. And that alone was vitally important. That provided a very good foundation for Alito in [u]McDonald[/i].
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Old March 24, 2013, 07:03 PM   #15
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I think Alito did a much better job in McDonald than Scalia did in Heller
Agreed. The one thing Alito did was include the word fundamental several times. That's vitally important, as restrictions on the exercise of fundamental rights are met with strict scrutiny.

Quote:
I was disappointed in Scalia's decision. I think he could -- and should -- have done better
He was called upon to answer two questions: is a ban on handguns in the home constitutional, and does the 2A protect an individual right? He actually went pretty far in answering those. Had he gone off-topic into broader waters, the cries of "judicial activism" would have rung true.

Carry outside the home wasn't the issue in Heller.

Quote:
The Supreme Court can, and has overturned it's own precedents.
They have, but it's taken a long time and major social changes for them to do so. Brown v. Board of Education comes to mind, and that was almost 60 years after Plessy v. Ferguson.
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Old March 24, 2013, 07:30 PM   #16
rajbcpa
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The court no longer interpretes the laws in terms of the Constitution. Rather, the judges merely tell us what they think the law should be.

The challenge to Obamacare is an example. The Commerce clause says the federal government cannot force you to buy anything, yet, Obamacare requires us to buy health insurance. ...and this was upheld....

I expect the NY and Colorado laws will be upheld.

I live in NY.
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Old March 24, 2013, 07:33 PM   #17
Spats McGee
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Quote:
Originally Posted by rajbcpa
The Commerce clause says the federal government cannot force you to buy anything . . . .
No, the Commerce Clause says:
Quote:
The Congress shall have Power . . . . To regulate Commerce with foreign Nations, and among the several States, and with the Indian Tribes;
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Last edited by Spats McGee; March 24, 2013 at 08:02 PM.
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Old March 24, 2013, 08:01 PM   #18
Aguila Blanca
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Quote:
Originally Posted by Tom Servo
He was called upon to answer two questions: is a ban on handguns in the home constitutional, and does the 2A protect an individual right? He actually went pretty far in answering those. Had he gone off-topic into broader waters, the cries of "judicial activism" would have rung true.

Carry outside the home wasn't the issue in Heller.
Understood.

In fact, "carry" wasn't the issue. Having to detail strip your self-defense firearm was the issue. Even so, I felt Scalia's opinion left a few too many doors ajar for the opposition.

Last edited by Aguila Blanca; March 25, 2013 at 09:21 PM. Reason: typo
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Old March 24, 2013, 08:06 PM   #19
Aguila Blanca
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Originally Posted by patriotic
NY I believe is one of the few if not the only state that does not have a RKBA statement in the state’s constitution.
I'm almost certain that New York is far from the only state that doesn't have a RKBA provision in the state's constitution. I'm pretty sure I researched that several years ago.

Interestingly, Massachusetts (the seat of the American Revolution) does have a RKBA provision -- but it is limited to defense of the State.

Connecticut has a RKBA provision, which specifically mentions "in defense of the self and of the state," yet NO carry is allowed in Connecticut without a permit. You have to wonder how that system has survived. I suspect the courts in Connecticut are so liberal that nobody dares bring a case.

Looks like this may be a good read on the subject: http://www.guncite.com/journals/dowrkba.html
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Old March 24, 2013, 10:05 PM   #20
Bartholomew Roberts
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Quote:
The other place where Scalia screwed the pooch was with the fuzzy language abut "presumptively" lawful restrictions [which is to say, "infringements"] on the RKBA. What this really meant was "There are a lot of gun regulations around the country that are not part of this case, so we're not going to address them today. Until challenged in court, we'll presume that they're okay."
That is actually one of the important arts of Scalia's decision. One problem with Second Amendment litigation is that for every Otis McDonald, there are 100 guys who should be in prison claiming the Second Amendment protects them. The language you quote gave the lower courts an easy out to dismiss those bad cases without doing any real legal analysis.
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Old March 25, 2013, 08:51 AM   #21
esqappellate
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The DC circuit sustained an AWB imposed by the D.C. Government. The decision drew a fierce dissent. Both the majority and the dissent should be required reading for everyone. Attached.
Attached Files
File Type: pdf opinion.hellerII.670_F_3D_1244_6-8-12_1432.pdf (262.1 KB, 18 views)
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Old March 25, 2013, 01:03 PM   #22
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"Please correct me if I am wrong but as a result of Heller and McDonald the 2nd Amendment has now been incorporated into the states which prior to that it was not. NY I believe is one of the few if not the only state that does not have a RKBA statement in the state’s constitution. My impression is that the Constitution places limits on what the federal government can do and incorporation passes those restrictions down to the states. Given that there should be no reason why the NY SAFE Act shouldn’t be overturned."

California is another one of those States. It's interesting that of the 48 signers of the original California Constitution, 25 were born in New York.
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Old April 5, 2013, 11:27 AM   #23
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Here is a NY Times piece asking for a new 2nd Amend version that would clarify the issues. The author seems to think that one could come up with one that would guarantee some rights to own guns but of course, would take out the EBRs. We all agree on that, it seems.

Another point, which I made elsewhere, that Scalia's prose is coming back to haunt us with reasonable restrictions, etc.

http://www.nytimes.com/2013/04/05/op...ndment.html?hp

Last, the assault flintlock is funny but has a hidden meaning that we are nuts for wanting such evil guns as we do now. Note other countries don't have an RKBA and thus they are somehow better. Only some South American countries have the right also but it is limited.

The problem with a clarification, so to speak - is that it could be the Joe Biden Amendment.

All Americans have the right to a double barrel shotgun, providing they shoot it in the air or through the door.
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Old April 5, 2013, 11:35 AM   #24
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Somehow, I just can't say that I'm in favor of a 2A rewrite.
Quote:
Originally Posted by NYT article
Laws to permit the carrying of concealed weapons are on the rise, but even the most ardent gun-rights advocates would not argue that owners should be free to carry, say, AK-47’s as they walk down the street.
Clearly, the author isn't acquainted with the same "most ardent" folks that I am.
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Old April 5, 2013, 11:48 AM   #25
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The author lives in Austin - and I doubt if he's met the most ardent of the folks in Texas. Carbine match this weekend. All those ardent types will be out there.
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